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Old 02-22-2021, 03:42 PM
 
Location: Somewhere in America
13,424 posts, read 12,284,856 times
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Quote:
Originally Posted by Ted Bear View Post
So, let me get this correctly.

OP has spent $100,000 on an attorney to clarify a simple deed question, and now the internet is going to provide a better answer for free?

Got it.
Well when you put it that way LOL

I'm really curious what he has spent $100,000 on an attorney for! That's not exactly pocket change for most folks.
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Old 02-22-2021, 08:50 PM
 
4,172 posts, read 4,129,952 times
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Quote:
Originally Posted by dontaskwhy View Post
Sadly, this looks like another "tragic" drive by posting. Sometimes people post vague questions hoping for an instant answer and then never respond to questions asked for clarification.

Well Paco has been around here for a while (I've run across him in multiple forums) so I would give him the benefit of the doubt for a while. The post was written midday today so maybe he punched it quickly into his phone and will come back this evening and explain more.
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Old 02-23-2021, 11:28 AM
 
13,661 posts, read 22,306,595 times
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Quote:
Originally Posted by PacoMartin View Post
A conflict with out township resulted when the solicitor cited an "obligation" from a deed written in one home in 1941 (there are 13 homes in the neighborhood), 11 of which were built after this deed was written.

I am familiar with the concept that you are required to uphold obligations written on your property that are not in your deed, but are in the deeds of former owners. For instance there may be an obligation in the deed of two previous owners that you cannot sell alcohol from the property. This restriction may have been omitted from your deed, but you are still under obligation from the previous deed.

But this case is different. The deed restriction only applied to one home in the neighborhood. It was never repeated for the other homes as they were built.

Is there any precedent for an obligation being conveyed this way? Don;t just tell me to hire a lawyer, because we are $100K in to paying lawyers already.
Yes, there is precedent, however, if it is not a legal conditioned covenant and restriction, it may not be enforceable. Which is why you do need to see a lawyer.

Years ago I worked part time in a loan office of a bank. I was dealing with home equity loans, but I did reconvey deeds. And I got to read some of the deeds. And out here a common restriction was no blacks and no Jews. Which is patently illegal at this point. I questioned this because I can’t imagine not questioning that.

I was told, and do not know if this is true or not, that in order to have something stricken off of a legal deed it requires every person in the development who has this restriction which is usually every house in the development, to do it in one fell swoop, hire a lawyer, and go through the system.

This costs a lot of money. Because often at least out here you’re not dealing with one or two parcels of land you’re dealing with 100. And all you’re doing is getting rid of unenforceable verbiage. The deed does not supersede law, law supersedes the deed. So why do it? Yes it’s offensive, but it is also unenforcible.

So if you’re looking for some sort of an out, I would look as to why your property was singled out. That’s a heck of a research job, I’m already excited about it. That does mean you will have to either pay the recording office in the courthouse to research the ownership chain of your house back to the very first owner/builder and then hit old newspapers to research those names to find out if there’s any reason that they did that to this specific property.

By the way if you ask your lawyer to do this that’s a lot of billable hours — I wouldn’t. This would be an afternoon, maybe two afternoons of looking by yourself. Of course I absolutely enjoy the heck out of research so there’s that.

Best of luck!

By the way, a lot of people do not want to give great detail to their issue even though they could probably get a much clearer more definite answer, because it makes them too easy to find. And you just never know when somebody’s going to go off the deep end. They would far rather vague post than out themselves.
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Old 02-23-2021, 01:05 PM
 
10,964 posts, read 8,939,522 times
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Quote:
Originally Posted by PacoMartin View Post
A conflict with out township resulted when the solicitor cited an "obligation" from a deed written in one home in 1941 (there are 13 homes in the neighborhood), 11 of which were built after this deed was written..
It sounds like you applied for a building permit and had to submit a plat, deed, and any covenants.
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Old 02-23-2021, 01:14 PM
 
Location: Rural Central Texas
3,632 posts, read 9,762,044 times
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The only factual response you will get here is “It depends.”

Real estate laws vary by state. Obligations vary by contract terminology. An obligation is simply a construct of contract law and will change enormously depending upon the language with which it is built. A single word in a specific order can entirely change the effect or duration of the contract.

Without being specific, and without a firm understanding of the legal environment it was created under, there is no answer to your question.
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Old Yesterday, 03:04 AM
 
10,712 posts, read 11,593,551 times
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Quote:
Originally Posted by adjusterjack View Post
I'm sure you told your lawyers what the restriction is and why it's an issue with you.

Now tell us.
The 1941 deed was written when there were two homes on one large property (~100 acres). The two homes were accessed by a 400' road over someone else's property, crossed a railroad track, and a creek. The owner decided to sell one home and one acre for $1 and put a clause in the deed that said they would share maintenance of the road.

Although the home was in terrible condition and was used as boarding for farm hands for 45 years, it is likely that there was some private compensation for more than $1. However it was certainly not a mansion.

The deed had a clause that said giving the new owner the right TO ENTER INTO AND UPON AND TO PASS AND REPASS IN AND ALONG A RIGHT OF WAY OR PRIVATE ROAD, OF THE WIDTH OF TWENTY-FIVE FEET, (roughly 400' long leading to the railroad tracks and the bridge).

SUBJECT, HOWEVER, TO THE PAYMENT BY THE GRANTEES HEREIN AND THEIR HEIRS AND ASSIGNS OF THEIR PROPORTIONATE SHARE OF THE EXPENSE OF MAINTAINING IN A GOOD CONDITION AND STATE OF REPAIR SAID RIGHT OF WAY OR PRIVATE ROAD.

These roads would have been dirt and gravel roads at the time. Deeds in 1941 were often woefully short of details especially in rural areas. A modern deed would be much more explicit about expected obligations, who determines what work needs to be done and at what cost. There is a bridge on the road which is not mentioned in the deeds. My argument is that the buyer of this home in 1941 would not have purchased it unless he believed that the obligation implied in the deed was a minor expense (i.e. spreading new gravel over the road)

Pass forward 63 years, and now the region is no longer rural, and there are 10 more homes built around the original 2 homes. However, the language in the original deed is not carried uniformly on the 10 new properties, and is completely missing from many of them.

Because of a natural catastrophe, damages well in excess of a million dollars are assessed. The township believes that because the original home in the neighborhood had this comment in its deed, the entire neighborhood is responsible for the damages.

While I know that if A sells a home to B with some restrictive covenant, and B sells the home to C but does include the restrictive covenant in his deed, then C is still obligated to respect the restrictive covenant provided it is still legal (i.e. not a racially restriction),

But that is not what the township is claiming in this case. They are saying that a dozen people are responsible for a clause in a neighbors deed written in 1941. Plus it is an interpretation of that clause.

Quote:
Originally Posted by ss20ts View Post
I'm really curious what he has spent $100,000 on an attorney for! That's not exactly pocket change for most folks.
The neighborhood spent that much (13 homes) and that is over 16 years.

Last edited by PacoMartin; Yesterday at 03:50 AM..
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Old Yesterday, 05:45 AM
 
1,907 posts, read 770,307 times
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Real estate law varies widely from state to state, it is complex and esoteric and with the government involved it gets worse. You might start however with your elected rep. for your part of the county. There are a few universities in the area, if they have law schools, they may have a program to take cases like this or in some states, the Bar Association has a pro-bono program for initial consultations.
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Old Yesterday, 06:10 AM
 
7,661 posts, read 9,601,922 times
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Quote:
Originally Posted by PacoMartin View Post
The 1941 deed was written when there were two homes on one large property (~100 acres). The two homes were accessed by a 400' road over someone else's property, crossed a railroad track, and a creek. The owner decided to sell one home and one acre for $1 and put a clause in the deed that said they would share maintenance of the road.

Although the home was in terrible condition and was used as boarding for farm hands for 45 years, it is likely that there was some private compensation for more than $1. However it was certainly not a mansion.

The deed had a clause that said giving the new owner the right TO ENTER INTO AND UPON AND TO PASS AND REPASS IN AND ALONG A RIGHT OF WAY OR PRIVATE ROAD, OF THE WIDTH OF TWENTY-FIVE FEET, (roughly 400' long leading to the railroad tracks and the bridge).

SUBJECT, HOWEVER, TO THE PAYMENT BY THE GRANTEES HEREIN AND THEIR HEIRS AND ASSIGNS OF THEIR PROPORTIONATE SHARE OF THE EXPENSE OF MAINTAINING IN A GOOD CONDITION AND STATE OF REPAIR SAID RIGHT OF WAY OR PRIVATE ROAD.

These roads would have been dirt and gravel roads at the time. Deeds in 1941 were often woefully short of details especially in rural areas. A modern deed would be much more explicit about expected obligations, who determines what work needs to be done and at what cost. There is a bridge on the road which is not mentioned in the deeds. My argument is that the buyer of this home in 1941 would not have purchased it unless he believed that the obligation implied in the deed was a minor expense (i.e. spreading new gravel over the road)

Pass forward 63 years, and now the region is no longer rural, and there are 10 more homes built around the original 2 homes. However, the language in the original deed is not carried uniformly on the 10 new properties, and is completely missing from many of them.

Because of a natural catastrophe, damages well in excess of a million dollars are assessed. The township believes that because the original home in the neighborhood had this comment in its deed, the entire neighborhood is responsible for the damages.

While I know that if A sells a home to B with some restrictive covenant, and B sells the home to C but does include the restrictive covenant in his deed, then C is still obligated to respect the restrictive covenant provided it is still legal (i.e. not a racially restriction),

But that is not what the township is claiming in this case. They are saying that a dozen people are responsible for a clause in a neighbors deed written in 1941. Plus it is an interpretation of that clause.

The neighborhood spent that much (13 homes) and that is over 16 years.
Do houses in the neighborhood now use that road for access? If so, from your description, I would agree with the Township. If only the initial two houses used the road for access then I would disagree with the Township's interpretation. Again, this is simply based upon what you have described. It would be essential to know the actual layout of the properties. Have you tried getting the road changed from a private road to a public road?
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Old Yesterday, 07:43 AM
 
Location: Somewhere in America
13,424 posts, read 12,284,856 times
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So you haven’t spent $100K recently. Several owners over 16 years have spent that on legal fees.

Sorry to say but I agree with the town. This is a private road thus the landholders are responsible for damages and maintenance. It’s not a public road which the town would be responsible for. This is why you got back through deeds when buying old rural properties. You never know what’s in the old deeds that carries on.
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Old Yesterday, 10:22 AM
 
10,712 posts, read 11,593,551 times
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Quote:
Originally Posted by ss20ts View Post
So you haven’t spent $100K recently. Several owners over 16 years have spent that on legal fees.
Yes. The original proposal from the township was that the owners should spend ~$100K apiece for a construction firm to fix the problem. The homes less than 70 years old have a tax assessed value that averages $99,209 . The two older homes have a tax assessed value of $145,700 and $128,700,

Quote:
Originally Posted by ss20ts View Post
Sorry to say but I agree with the town. This is a private road thus the landholders are responsible for damages and maintenance. It’s not a public road which the town would be responsible for.
This is part of the issue why in my initial post I only outlined one legal question.

You are absolutely correct in some cases including several cases in the same county. There are private bridges and the homes are on private lands. In our state a private road is limited to a 25' right of way. There are no sewer lines. Most importantly the roads are not registered with the state to get credit from gasoline tax (in 2020 local municipalities are given $3,337 per mile of local road for maintenance).

Our situation is different in that the roads where our homes are built on are public roads with sewers for which the township collects the gasoline tax. But it is illegal to dedicate a public road in our state unless it is connected to another public road. As one juge stated "there is no authority in law for the opening of a road entirely detached from all other roads and leading nowhere."

Quote:
Originally Posted by ss20ts View Post
You never know what’s in the old deeds that carries on.
We did check our deeds back to 1896. Before that it was owned by one family for over 90 years.

My question is I don't see how a neighbor's deed affects our property.
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